Forfeiture Laws, the War on Drugs, and Alvarez v. Smith

Today, the Supreme Court hears Alvarez v. Smith, an
important case that will affect the constitutional property rights
of many people around the country but has failed to attract the
attention as it deserves.

In Alvarez, the federal Seventh Circuit Court of
Appeals ruled that it was unconstitutional for Chicago police to
seize cars and other property and hold it for many months at a time
a without giving the owners any chance challenge the seizure. The
Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the
police to seize property that may have been involved in a
drug-related crime and hold onto it for up to 187 days without any
kind of legal hearing. This rule applies even to property owned by
completely innocent persons who simply had their possessions caught
up in a drug investigation through no fault of their own –
for example, if someone else used their car to transport illegal
drugs without their knowledge. The three car owners involved in
Alvarez were never even charged with a crime, much less convicted.
Under DAFPA, the authorities also don’t have to prove that keeping
innocent owners’ property is necessary in order to prevent the loss
of valuable evidence.

In other words, DAFPA authorizes the government to take away the
valuable property of completely innocent people for over six months
at a time, without giving the owner any opportunity to contest the
seizure whatsoever. The 187 day time limit applies to any personal
property worth less than $20,000, which includes most cars. And,
even after an asset forfeiture action is filed, many more months
might pass before any court actually hears the case. In this case,
the three cars were held by the police for over a year.

Laws like DAFPA pose a serious danger to the property rights of
innocent people caught up in the War on Drugs. In many
jurisdictions, police departments are allowed to auction off
property seized in drug investigations and keep the profits, giving
them a clear incentive to seize cars first and ask questions later.
Moreover, many of the people whose cars are seized are poor or
minorities. They often lack the political power necessary to
persuade police to release their property without judicial
intervention.

The Court of Appeals ruled that DAFPA violate the property
owners’ rights under the Due Process Clause of the Fourteenth
Amendment. It should have been an easy case. After all, the Clause
requires that states must not “deprive any person of life, liberty,
or property, without due process of law.” One can certainly argue
about how much process is “due” in any given situation. But surely
it is a violation of the Clause for the state to deprive an
innocent citizen of valuable property for many months without
any judicial process whatsoever. That is especially true if
the deprivation imposes a severe burden on the property owner, as
is often the case when the property seized is a car. Perhaps little
or no process should be required for a very small deprivation of
property. But surely more is “due” when the owner suffers serious
harm as a result of the seizure.

The lower court decision requires only that property owners be
given an opportunity to challenge the seizure of their property in
a brief informal hearing. If the Supreme Court denies property
owners even this minimal protection, then there will be no
meaningful constraint on the power of the government to seize the
property of innocent people caught up in criminal investigations
and hold it for many months at a time. Unfortunately, it is quite
possible that the Supreme Court will reverse the Seventh Circuit.
The Court usually hears cases only when there is a split between
courts of appeals in different parts of the country (which did not
happen here) or when it wants to reverse the lower court
decision.

There is one ray of hope. In Krimstock v. Kelly, a 2002
decision she authored while serving as a Second Circuit Court of
Appeals judge, newly confirmed Justice Sonia Sotomayor invalidated
a New York City law very similar to the Illinois statute challenged
in Alvarez. Perhaps Justice Sotomayor can persuade her
colleagues to take the same view. Otherwise, the property rights of
numerous innocent people will remain at risk.

Ilya Somin is an Associate
Professor of Law at George Mason University, an adjunct scholar at
the Cato Institute, and editor of the Supreme Court Economic
Review. He testified on property rights issues at the Senate
Judiciary Committee confirmation hearings of Justice Sonia
Sotomayor, including her decision in Krimstock v. Kelly.